CASUAL LEGAL: “You’re breaching my rights”: A Review of the Charter of Rights and Freedoms
“You’re breaching my rights”: A Review of the Charter of Rights and Freedoms
By Jenna Chamberlain
Reynolds Mirth Richards Farmer LLP
AMSC Casual Legal Service Provider
As a result of pandemic safety measures, including those enacted by municipalities in Alberta, there have been many claims and discussions regarding the Charter of Rights and Freedoms. For example, Pastor James Coates, who was arrested for holding religious services in breach of safety measures enacted under the Public Health Act, is claiming these safety measures infringe on his freedom of religion.
These situations highlight the importance of understanding how the Charter applies to municipalities.
The Charter is part of The Constitution Act, 1982 and guarantees people a number of rights and freedoms. These fundamental freedoms include the freedom of religion, freedom of expression, freedom of peaceful assembly, and freedom of association. The guaranteed rights include the right to life, liberty and security of person, the right to equal protection and benefit of the law without discrimination, democratic rights, and mobility rights.
Municipalities are bound by the Charter and, therefore, each must ensure the bylaws it passes do not infringe upon the rights and freedoms guaranteed by the Charter.
This becomes difficult when different rights or freedoms are in conflict, or if there is a public policy reason why certain rights and freedoms should be infringed upon. For these instances, the Charter contains an exception to the guarantee.
Section 1 of the Charter guarantees certain rights and freedoms “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Therefore, a bylaw can infringe on the rights and freedoms in the Charter, if it falls under section 1. The test for section 1 is called the Oakes test, which requires the following four elements to be met:
- The objective of the legislation must be pressing and substantial;
- The legislation must be rationally connected to its objective;
- The impairment of the right must be minimal; and
- The benefits of limiting the right must outweigh the deleterious effects.
This is a difficult test to meet. If a bylaw does not comply with the Charter, and is unable to pass the Oakes test, then it is unconstitutional and will be of no force and effect.
We are still waiting to see how the courts will respond to the Charter challenges brought against the various pandemic safety measures enacted. However, it appears that reasonable safety measures will pass the Oakes test based on the current safety risks. This could change as the pandemic situation changes. Municipalities should continue to review any pandemic bylaws they have put in place which may be viewed as infringing on a Charter right or freedom. Even if a bylaw would pass the Oakes test today, the same bylaw could become unconstitutional once a majority of the population is vaccinated and the risks associated with the pandemic have subsided.
To access AMSC’s Casual Legal Helpline, AUMA members can call toll-free to 1-800-661-7673 or email casuallegal [at] amsc.ca (casuallegal[at]amsc[dot]ca) and reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please contact riskcontrol [at] auma.ca (riskcontrol[at]auma[dot]ca), or call 310-AUMA (2862) to speak to AUMA’s Risk Management staff. Any Regular or Associate member of the AUMA can access the Casual Legal Service.
DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.
